another's land, though built for the purpose of Company entered and built its road without obasserting an adverse title, becomes the land-own-jection, except it was notified to repair injuries er's property. Lee v. Risden, 7 Taunt. 188. The value of the land for which damages must be given is its value at the time of the railroad company's lawful occupation. No other occupation should be recognized. This measure of damages has been adopted in Indiana and in California. Graham v. The R. R. Co., 36 Ind. 467. U. S. v. Land in Monterey Co., 47 Cal. 515. C. Albright and H. Green, contra. A land-owner's measure of damages in such cases is the difference between the value of his property before, and its value after the construction of the railroad. Schuylkill Nav'n Co. v. Farr, 4 W. & S. 362. P. & N. Y. Railroad Co. v. Bunnell, 31 Sm. 425. The title of the Company relates back to the commencement of the proceedings. Lawrence's Appeal, 28 Sm. 365. In the Pennsylvania cases in which the entry was, as here, unauthorized, no such measure of Harrisburg v. Crangle, 3 W. & S. 460. A railroad's interest in a case like this is a mere easement in the land; as such it is not the subject of a lien, or a sale under execution. And annexation to the easement is impossible. Western Pa. R. R. v. Johnston, 9 Sm. 290. May 6, 1878. THE COURT. This was a proceeding to view and value land taken by the Nesquehoning Valley Railroad Co. for its railroad, and to assess damages therefor. It came into the Court below by appeal from the finding of viewers, and was tried before a jury. to tenants. A bond was offered to the husband of one of the owners, who said he did not want it. The facts exhibit no outrage in the taking of the property, but the entry was clearly a tres pass. No bond having been filed and approved according to law, the entry was irregular and subjected the Company to an action of ejectment, in which judgment was confessed April 3, 1874, and execution stayed until the proceedings to assess the damages should be completed. The Company being a trespasser, and the entry not in conformity to law, the question is, whether the irregular proceedings operated as a dedication in law of the ties and rails to the owners of the land so as to entitle them to include these things in the assessment of the damages under the railroad law, and recover their value as an accession to the value of the land taken by the Company. A careful consideration and analysis of the case before us will show that it differs in essential restructures upon the land of another enure to the spects from that of a mere tort-feasor whose benefit of the owner of the land. The common law rule is undoubted, that a trespasser who builds on another's land dedicates his structures to the owner. The reason is obvious, for like him who sows where he cannot reap, he can obtain no advantage by his wrong, and having affixed his chattels to the realty, they become part of it, and he cannot add further injury by tearing them down. Even a tenant is to a modified extent affected by the same rule. If he improves under a covenant, the covenant governs his right of removal. So if in favor of trade he erects structures for his business, doing no unnecessary or irreparable injury to the land, yet having done this without consent, he must remove his erections before the expiration of his term. Otherwise he will be presumed to dedicate them to his lessor. There is also to be noticed a clear distinction between putting down a railroad track under a lease, and an As stated in the argument of the plaintiff in error, there is a single question raised by all the assignments of error, to wit: whether the plain-act of appropriation of the land under a charter. tiffs were the owners of the ties, rails, and other structures placed on the land by the Railroad Company before the 5th of April, 1874, the date of the verdict in ejectment. The facts are few and fairly raise the question. The plaintiffs were the owners of a large tract of land lying at the entrance or "key" to the valley, and divided by the Nesquehoning Creek, leaving fifty acres to the south of the stream, consisting of valley and timbered hillside. The railroad nearly bisects these fifty acres. In 1869 the Railroad Company endeavored to purchase the whole of this part, but owing to the large number of owners failed to do so. The This is clearly pointed out in Heise v. Penna. R. R. Co. (12 P. F. Smith, 67). The very intent of an appropriation of land, is to place upon it, and own and use the structures necessary to carry out the charter purpose. Hence no dedication of the material can be inferred in such a case. In this we perceive how differently the common law itself must view the application of its own rules. The great merit of common law, so often commended by jurists, is its plasticity as a system of principles (and not merely of rigid rules) which can be adapted to new conditions in the affairs of men. Modern inventions and discoveries have so far transcended the condition of former times, that | necessity for their use in the execution of the to apply the rule as to a mere trespasser, whose entry is a tort pure and simple, to the case of one authorized to enter for a great public purpose merely because of an irregularity in the manner of proceeding, would be as vain as to attempt to dress a full grown man in the garb of his child-dies-his action of ejectment to recover and rehood. This is not the case of a mere trespass by one having no authority to enter, but of one representing the State herself, clothed with the power of eminent domain, having a right to enter and to place these materials on the land taken for a public use, materials essential to the very purpose which the State has declared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security of the citizen, to wit: to make compensation or give security for it. public purpose-and, lastly, the power to retain and possess these chattels and the structures they compose, by a valid proceeding at law, notwithstanding the original illegality of the entry. For the latter the owner has his appropriate remetain his land and its use, until the company shall proceed according to law, and his action of trespass to recover damages for the injury sustained by the unlawful entry, and holding possession, and whatever loss has been caused by these illegal acts. There are some analogies bearing remotely on the question before us, showing that property is not gained by the owner of land because found upon it. Thus in the case of property carried off by a flood and stranded on the premises of another the owner may follow it, enter, and take it; or if the owner of the land convert it, may recover its value. (Froster v. Bridge Co., 4 Harris, 395; Etter v. Edwards, 4 Watts, 63.) And even a sale will not carry unknown secreted valuables. (Huthmacker v. Harris's Adr., 2 Wright, 491.) For this injury the citizen is entitled to redress. But his redress cannot extend beyond his injury. It cannot extend to taking the personal chattels of the Railroad Company. They are not his and cannot increase his remedy. The injury was to what the land-holder had himself, not to what he had not. Then why should the materi- But a case bearing a close analogy, indeed deals laid down for the benefit of the public be ciding the principle on which this case rests, is treated as dedicated to him? In the case of a Meig's Appeal (12 Sm. 28.) In the year 1862 the common trespasser, the owner of the land may United States, in the prosecution of war, erected take and keep his structures nolens volens; but buildings on the public common of York, for milnot so in this case, for though the original entry | itary barracks and hospitals. After the close of was a trespass, it is well settled, that the Com- the war the government was about removing the pany can proceed in due course of law to appro- materials, when the borough authorities propriate the land, and consequently to reclaim and ceeded to enjoin the removal, on the ground avail itself of the structures laid thereon. (Harris- that the buildings had been affixed to the realty. burg v. Crangle, 3 W. & S. 464; McClinton v. In that case we said, referring to Hill v. Sewald R. R. Co., 16 P. F. Smith, 409; Del. R. R. Co. (3 P. F. Smith, 271), that the old notion of a v. Burson, 11 P. F. Smith, 379.) And in Harvey physical attachment had long since been exploded v. Thomas (10 Watts, 63) it was held that the in this State, and that the question of fixture, or subsequent proceeding to assess compensation not, depends on the nature and character of the was a protection against a recovery of vindictive act by which the structure is put in place, the damages. policy of law connected with its purpose, and the intentions of those concerned in the act. This language applies emphatically to the case now under consideration. Another evident difference between a mere tort-feasor and a railroad company is this: the former necessarily attaches his structures to the freehold, for he has no less estate in himself; but the latter can take an easement only, and the structures attached are subservient to the purpose of the easement-a railroad company can take no freehold title, and when its proper use of the easement ceases the franchise is at an end. There is no intention in fact to attach the structure to the freehold. We have, therefore, these salient features to characterize the case before us, to wit: The right to enter on the land under authority of law, to build a railroad for public use, the acquisition thereby of a mere easement in the land, the entire absence of an intention to dedicate the chattels entering into its construction to the use of the land. The It was further said then: "The nature and character of the structures are also to be considered. They were not improvements made for objects connected with the soil, neither intended to give value to it, nor to receive value from it." So precisely here, the railroad having no connection with the improvement of the land or its uses. "The act (says the opinion) is distinguishable from that of an ordinary trespasser. There was no intent to improve the ground, or to make it accessory to some business or employment. "It was not an assertion of title in the soil, or of an intention to hold adverse possession. Indeed, there was not a single element in the case which characterizes the act of a tort-feasor, who annexes his structure to the freehold, and is there- | Articles of Association of said company for two fore presumed to intend to alter the nature of hundred shares of the capital stock, at $50 each, the chattel and convert it into realty, and thereby amounting to the sum of $10,000. Mr. Hogg to make a gift of it to the owner of the freehold." made payments on his subscription from time to This language strongly characterizes the case be-time, until he had paid $4500. On November fore us. Here as there the purpose is a public use; there was no intent to hold adversely as a trespasser, nor to improve the ground or make it useful and valuable by the erection. 14, 1876, the directors of the company passed a resolution authorizing their treasurer, U. S. Craft, to borrow $2500. Mr. Hogg loaned the company that amount, by making two promissory notes, one for $1500, the other for $1000, payable to the order of U. S. Craft, as treasurer of said company. Mr. Craft, as treasurer, endorsed the notes, and had them discounted at two different banks in Brownsville, Pa. Subsequently Mr. Hogg paid the treasurer $500, and he (the treasurer) paid this sum on the $1000 note, and had The rails and ties were not intended to be attached to the freehold, but were laid down as part of an easement under a franchise of the State. There was no intent to use the land as an owner would, and no intent to abandon the materials to the use of the owner, but they were subject to a legal proceeding resulting in main-it renewed for $500, and allowed Mr. Hogg a taining both ownership and use for the charter purpose. We think, therefore, the ownership of the rails, ties, etc., did not vest in the plaintiffs in error by the mere trespass in the original entry. Judgment affirmed. credit of that amount on his unpaid subscription. Both notes were renewed from time to time, before and after the sale of the road, until Mr. Hogg lifted and paid them. No action was ever taken by the directors in regard to the payment of this loan, nor was there provision made in Opinion by AGNEW, C. J. MERCUR and GOR- any way for its settlement. DON, JJ., dissent. Oct. & Nov. '78, 228. On February 5, 1878, the sheriff of Fayette County, by virtue of an execution issued on a judgment obtained by Campbell Bros. against the company, sold the railroad to Charles E. Speer Nov. 22, 1878. for $16,975, and on March 23, 1878, the proHogg's Appeal. ceeds of sale were paid into Court, and an auditor was appointed to make distribution of the Sheriff's sale of property and franchises of a fund. Mr. Hogg appeared before the auditor, railway company-Distribution of proceeds-and claimed $2000, with interest from December Who not entitled to share therein-Purchaser does not acquire debts due the company. A. was indebted to a railroad company for $5000 subscription to its stock. The railway company was indebted to A. for $2000 money loaned. The property and franchises of the company were sold at sheriff's sale on a judgment obtained against the company by B. In distributing the proceeds of the sale among the creditors of the comHeld, that A. was not entitled to share in the distribu pany: Appeal from and certiorari to the Common Pleas of Fayette County. This was an appeal from a decree sustaining an exception to the claim of George E. Hogg, as allowed by the auditor appointed to distribute a fund arising from a sheriff's sale of the property and franchises of the Brownsville Railway Company. The following were the material facts :The Brownsville Railway Company was organized and incorporated under the Railroad Law of April 4, 1868 (P. L. 62), and the supplement thereto of April, 1870. On September 22, 1875, George E. Hogg subscribed his name to the 8, 1877, being the balance due him on the loan he had made to the company. The auditor allowed him to share in the fund, to which allowance exceptions were filed by some of the other creditors, on the ground that he (Hogg) owed the company $5000 on his subscription to the stock at the time the road was sold by the sheriff; and that the $2000 should have been applied to his subscription; and that the auditor should treat it as having been applied. On July 23, 1878, the matter came on for hearing on the exceptions, and the Court directed that the exceptions be sustained. Thereupon Hogg took this appeal, assigning for error the decree of the Court sustaining the exceptions to the auditor's report. W. G. Guiler (with him Daniel Kaine), for appellant. The debt of the corporation could not be applied as a credit on the subscription to the stock without the consent of the corporation, through its directors. No such action was ever taken by the directors, and they having failed to do so, the creditors have no right to have such application made now. The unpaid subscriptions to the stock of the company passed to the purchaser of the road free from any and all claims that the delinquent sub- | his guardian, Wm. Taylor, against Robert Mitscribers may have against the company. There- chel, John Carson, John R. McFadden, and Wm. fore to allow the creditors, after the sale, to set off the debt due from the company against the unpaid subscription, would infringe on the rights of the purchaser. Mr. Hogg's only course was to settle with the purchaser for his unpaid subscription, and look to the fund arising from the sale for the payment of his claim, and he has done this. Commonwealth v. Central Passenger Railway, 2 Sm. 506. Boyle & Mestrezat and Minor & Parshall, contra. Nov. 28, 1878. THE COURT. We think that in equity, while George G. Hogg is debtor for his stock to a greater amount than his claim against the railroad company he cannot ask payment of his debt from it. The sale of the railroad property and franchises did not pass to the purchaser the debts or mere choses in action due to the company from others. As between the company and a subscriber to stock, the subscription is a debt collectible by ordinary suit. The distribution was properly made according to the principles stated in Bayard's Case (22 P. F. Smith, 453). Decree affirmed, with costs to be paid by the appellant, and appeal dismissed. PER CURIAM. WOODWARD, J., absent. Oct. & Nov. '78, 235. H. Carson, for the undivided one-fourth of a lot of ground on Pennsylvania Avenue, Allegheny City. The following facts appeared : Wm. Carson died in 1871, seized in fee simple of the premises in dispute. He left two sons, Wm. H. and John Carson, two of the above named defendants; two grandsons, one of whom was the son of Nancy McFadden (formerly Carson), and John R. McFadden, another defendant, and the other of whom, Carson W. Taylor, the plaintiff, was the son of a deceased daughter. The defendants claimed title to the whole of the lot under the last will and testament of the said William Carson, dated August 18, 1869, and proved in 1871, devising said lot, inter alia, to John Carson, John R. McFadden and Wm. H. Carson, in equal shares. Mitchell, the other defendant, was in possession as lessee under the devisees. Plaintiff claimed one-fourth interest in the property, founded on the following agreement duly entered of record : Whereas John Carson and wife, and John R. McFadden and Nancy his wife, have this day duly executed to James Old, of McClure Township, Allegheny County, a release of all the right, title, interest and claim of them, of, in, and to a certain tract of land in the said reserved tract, opposite Pittsburgh, in the County of Allegheny, being part of out-lots, Nos. 217 and 218, in said reserved tract, and containing two acres and 71 9-100 perches, the title of which was in them, through their mother Nancy, Nov. 6, 1878. late Nancy Bennett, without consideration whatsoever from me, and for my benefit: Therefore, know all men by these presents, that I, William Carson, in consideration thereof, hereby covenant and agree to and with the said John Carson and Nancy McFadden, that I shall not, nor will I, by deed, mortgage, sale, judgment, devise, or otherwise, prejudice or interfere with the rights of the said John Carson and Nancy McFadden, as my heirs-at-law, as to their free and equal share in all my real estate, but the same shall remain free and uncontrolled, to be divided equally amongst all my legal heirs, including the said John and Nancy, at my decease. Taylor v. Mitchell et al. Decedent's contracts-Covenant by a decedent, in his lifetime, for valuable consideration, not to convey or encumber land, but to leave it "free and uncontrolled, to be divided equally amongst all my legal heirs"-Construction of-Such covenant will prevail over last will and testament, making unequal distribution—Statute of uses and trusts. By an agreement executed under his hand and seal, and for a valuable consideration, C. covenanted that he would not, by deed, mortgage, sale, judgment, devise or otherwise, prejudice or interfere with his heirs-at-law, as to the free and equal share of all his real estate; but that the same should remain free and uncontrolled, to be divided equally amongst all his legal heirs. By his last will and testament, C left his real estate to certain of his heirs, but not including one T. In ejectment by T. to recover his interest under the agreement, as one of the heirs of C. : Held (reversing the judgment of the Court below), that he was entitled to recover. Error to Common Pleas No. 2, of Allegheny County. Ejectment, by Carson W. Taylor, a minor, by Verdict for plaintiff, subject to the opinion of the Court, on the question of law reserved, whether the plaintiff has title by reason of the agreement dated August 15, 1862. If the Court should be of opinion that he has, then judgment to be entered on the verdict in his favor; but if the Court should be of opinion he has not, then judgment to be entered in favor of defendant non obstante veredicto. After argument before the Court in banc, EWING, P. J. presiding, judgment was entered in favor of defendant, non obstante veredicto, whereupon the plaintiff took this writ, assigning | against his will. A valuable consideration is set for error the entry of said judgment. forth, namely, a conveyance for the benefit of said William, by John Carson and Nancy McFadden, of their title and interest in a tract of land which they inherited from their mother; and for that, said William covenanted, "that I shall not, nor will I by deed, mortgage, sale, judgment, devise, or otherwise, prejudice or interfere with the rights of the said John Carson and Nancy McFadden as my heirs-at-law, as to their free and equal share in all my real estate; but the same shall remain free and uncontrolled, to be divided equally amongst all my legal heirs, including the said John and Nancy, at my decease." This paper is, in effect, a declaration of trust by Wm. Carson, that he would die seized of the real estate he then owned, so that the same should remain free and uncontrolled and be divided equally amongst all his legal heirs. It was based on good and valid considerations, viz.: natural love and affection of Wm. Carson for his children and grandchildren, which though not expressed, is manifest from the relations of the parties; also, the voluntary conveyance by two of his children to James Old, for their father's benefit, of a tract of land owned by them, and of which their father was tenant by the curtesy. The instrument cannot be construed as testa-be divided amongst his heirs. Had he contracted, mentary; it is a deed, and there is nothing to prevent the statute of uses from operating. The language of the agreement constitutes a covenant by Wm. Carson, to stand seized for the use of his children and grandchildren, who are his heirs-atlaw. Fisher v. Strickler, 10 Barr, 348. Vanhorn's Lessee v. Harrison, I Dallas, 137. The plain meaning is, that for a valuable consideration the covenantor agreed to hold his real estate unencumbered, free and uncontrolled, to for the same consideration, to sell his land and give possession at his death, and make provision for conveyance, after his decease, to such persons as should be his heirs, the intent would not be more obvious. For the purpose of reaching the like end, he covenanted to stand seized to the use of his heirs. John Carson and Nancy McFadden were children of William, who also Statute of Uses and Trusts, 27 Hen. VIII. Ch. 10, had two other children by his second wife. Robert's Digest, 404 to 410. S. H. Geyer, contra. The instrument is testamentary; it vests no present interest, but only appoints what is to be done after the death of the maker. Being revoked by the subsequent will, the estate must go to the devisees. Turner v. Scott, 1 Sm. 134. Scott v. Scott, 20 Sm. 244. [MERCUR, J. What do you make of the condition, that he would not mortgage or encumber the estate?] That was a covenant enforceable against his representatives after his death. [SHARSWOOD, J. If I covenant with you to hold a farm for the use of John Smith, for consideration of $1000, would not that be enforceable?] In such case I could enforce it, as covenantee; John Smith could not. When a covenant is made by one man for the benefit of another, the action must, with certain limited exceptions, be brought in the name of the party to whom it was made, and not by him for whose benefit it was made. Parsons on Contracts, 5th ed., vol. 3, p. 361. January 6, 1879. THE COURT. William Carson's deed, dated 5th August, 1862, is so far from being testamentary that it contains his covenant not to devise his real estate. The sole question is, whether that covenant shall prevail That natural love and affection of the parties to this deed, for the other children, likewise moved them to so stipulate, is manifest from the reis not essential that it be expressed. (Fisher v. lationship; and were such motive necessary, it Strickler, 10 Barr, 348.) Little need be predicated of this, farther than showing one object of the covenantees was prevention of the very thing attempted upon the plaintiff. No William Carson died seized of the land, and the devisees stand in his shoes. They are not innocent third persons. Had he died intestate, his heirs could not violate the contract. matter if the deed is not, in strictness, within the statute cf uses and trusts, 27 Hen. VIII., and the conveyances which sprung up in consequence thereof; the consideration was not money, necessary to a bargain and sale, nor blood or marriage, necessary to a covenant to stand seized to uses; but it was a valuable one, and, between the parties and privies, sufficient to support a contract to hold the land for use of his heirs, their possession to commence at his death. Each party, equitably interested, can recover his portion in his own name, and is not bound to resort to a personal action for damages. Judgment reversed, and judgment is now en- |